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[2002] NSWCCA 112
mixed. The appeal against conviction was dismissed. Leave to appeal against sentence was granted and the appeal allowed. The original sentence was set aside and replaced by four years’ imprisonment commencing...
The Court left Kaddour’s conviction in place because the defence expert could have investigated the engine before trial, and his later examination was uncertain and unlikely to create a significant possibility of acquittal. The Court reduced the sentence because it considered six years and a four-and-a-half-year non-parole period manifestly excessive in the circumstances. It set a four-year sentence and a three-year non-parole period.
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2,687 words · generated 28/09/2026
In Regina v Kaddour [2002] NSWCCA 112, the New South Wales Court of Criminal Appeal considered two distinct parts of Kalid Kaddour’s appeal: his challenge to the conviction and his challenge to sentence. Stein JA gave the principal judgment, with Dowd J and Buddin J agreeing ([1], [49]–[50]).
No linked legislation citations have been extracted yet.
On 14 September 1998, Kaddour was driving a Lamborghini south on Barrenjoey Road, Mona Vale. The car crossed a concrete median strip into the northbound lane and collided with a Volvo driven by Mrs Dexter, causing her injury. The Lamborghini was travelling at approximately 100 to 105 kph in a 60 kph zone when it crossed the median strip ([2]). There was also evidence that Kaddour had driven at very high speeds for about six kilometres before the collision ([4]). The jury found him guilty of driving in a manner dangerous and causing grievous bodily harm. It could not agree on an alternative charge tied to a speed greater than 105 kph ([3]).
At trial, the defence relied on the possibility of mechanical failure. One proposed explanation was that the accelerator cable had jammed, causing Kaddour to lose control ([5], [9]–[11]). A prosecution expert, Constable Thompson, had examined the car eight days after the accident. Despite fire damage, he found no mechanical problem other than damage caused by the collision. He described the throttle assembly as operating normally and said the throttle returned to rest under spring tension ([6]–[8], [28]).
The defence expert, Mr Wingrove, examined the wreck much later, in June 2000. The engine was not with the wreck, and he did not inspect it before trial. He removed part of the accelerator cable, damaging it in the process, and could not identify what had caused the suspected jamming ([9]–[10]). After the trial, he examined a fuel-injection assembly that had been separated from the engine. He then concluded that collision damage could have prevented Constable Thompson from confirming that the accelerator had returned to the closed position ([14]–[15]).
The Crown disputed that conclusion. Senior Constable Lee considered that Thompson had inspected the engine and associated linkages, and that the photographs were consistent with a closed throttle. Lee also pointed out that Wingrove did not know when or how the examined component had been removed from the engine, or whether it had been damaged in the process ([16]–[18], [20]).
The Court dismissed the conviction appeal. It granted leave to appeal sentence, allowed that appeal and replaced the six-year sentence with four years’ imprisonment, backdated to 3 March 2000. The new non-parole period was three years ([36], [43]–[48]).
The fresh-evidence question had two stages in the Court’s reasoning. First, could the evidence have been obtained at trial through reasonable diligence? Second, even if it could be received on appeal, was it sufficiently significant to create a real possibility that the jury would have acquitted?
On availability, the Court treated the contents of Constable Thompson’s statement as important. It described his examination of the accelerator throttle assembly and his finding that the offside fuel-bank throttle was free at rest and returned under spring tension ([28]). Mr Wingrove had the statement in his brief before trial. The Court considered that the statement should have alerted an experienced defence expert to inspect the engine, rather than only the wreck without the engine ([29]–[31]).
Wingrove accepted on appeal that he could have examined the engine before trial, although he had not been asked to do so. He said that he had not regarded the engine as relevant to the work he was retained to perform ([19]). Stein JA found that explanation unpersuasive. The Court held that due diligence would have required the expert to examine both the wreck and the separated engine before trial ([31]–[32]). The judgment therefore illustrates that a later expert opinion does not become fresh evidence merely because the expert only recognised its possible significance after the trial. The Court’s focus was on whether the investigative step could reasonably have been taken beforehand, given what the expert already knew.
The Court gave a separate, alternative reason for doubting the proposed evidence. Wingrove examined the component in July and September 2001, more than a year after the verdict and nearly three years after the accident ([14]). He did not know when or how it had been dismantled from the engine, whether that process had caused the damage, or when the damage had arisen ([20], [30], [33]). The Court regarded the comparison as unreliable because the component’s condition at the time of the later inspection might not have reflected its condition when Thompson examined the engine shortly after the accident. The judgment’s “oranges with apples” analogy at [33] captures this concern about comparing evidence from components whose relevant conditions could not be shown to be equivalent.
The Court also considered the evidence in the context of the trial case. Kaddour had been seen travelling at very high speed over a considerable distance before the collision ([34]). The Court concluded that it was difficult to see how the jury would have found that a jammed cable caused the loss of control, and it was not persuaded that the later evidence created a significant possibility of acquittal ([34]–[35]). The conviction appeal was dismissed ([36]).
The sentence appeal turned on the totality of the circumstances, not simply on the fact that the driving was serious. The maximum penalty at the time was seven years. The sentencing statistics supplied by the Crown showed that Kaddour’s six-year sentence and four-and-a-half-year non-parole period were the highest among 22 convictions for the offence ([37]–[38]). The Court contrasted that result with the sentencing material before it, including cases involving additional aggravating features such as high blood-alcohol readings and drug use ([39]).
The Court acknowledged aggravating matters: the speed was excessive over a considerable distance, Kaddour had a bad traffic record that included repeated speeding offences, and he was unlicensed ([41]–[42]). It also noted the absence of alcohol or drugs, competitive driving and ignored warnings ([41]–[42]). Having considered the objective circumstances and Kaddour’s subjective circumstances, the Court found the original sentence manifestly excessive and substituted four years’ imprisonment ([42]–[44]).
Finally, the Court considered whether his extreme high-security classification justified a shorter non-parole period. The classification affected access visits, employment, isolation and access to prison facilities, making imprisonment harsher than usual. But the Court did not know when the classification might be reassessed and was not satisfied that it constituted special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 ([46]–[47]). It fixed the non-parole period at three years, three-quarters of the substituted sentence.
The judgment applied, rather than announced a comprehensive new test for, fresh evidence on criminal appeal. It referred to Ratten v The Queen (1974) 131 CLR 510 at 517 for the proposition that a trial is not unfair merely because an accused chose not to call evidence that was available, or could reasonably have been discovered and produced, at trial ([23]). It also cited Mickelberg v The Queen (1989) 167 CLR 259 at 301 and Gallagher v The Queen (1986) 160 CLR 392 in relation to the potential significance of fresh evidence ([25]).
Stein JA described the Mickelberg approach as asking whether the fresh evidence, viewed with the trial evidence, would have been likely to cause the jury to entertain a reasonable doubt. The judgment also framed the inquiry as whether there was a significant possibility of acquittal, and referred to R v AT [2000] NSWCCA 342 at [50] and R v Hemsley for the miscarriage-of-justice rationale ([26]). Kaddour applies those propositions to an expert investigation that was technically possible before trial but not undertaken.
The practical consequence in this case was that the Court did not treat the expert’s post-trial discovery as sufficient by itself. It examined what information the expert had already received, what inspection he could have undertaken, and the reliability of the later-observed component. The application failed both because the evidence could have been obtained through reasonable diligence and because the Court doubted its capacity to affect the verdict ([27]–[35]).
On sentence, the judgment applied the manifest-excessiveness assessment to the facts and sentencing material before it. It did not set out a general numerical sentencing range. Instead, it treated the statistics showing that the original sentence was the highest among the 22 convictions supplied, together with the comparative aggravating features in other cases, as relevant to whether this sentence was outside an appropriate range ([37]–[42]). The decision substituted a lower sentence but retained a non-parole period of three-quarters of the term after considering, and rejecting, the claimed special circumstance ([46]–[48]).
The judgment provides no account of later cases applying, distinguishing or departing from Kaddour. Its later treatment therefore cannot be established from the material supplied here.
At [23], the judgment quotes Ratten: a trial does not become unfair just because the accused did not call evidence that was available, or could reasonably have been discovered and presented. In plain English, the appeal court asks whether the evidence was genuinely unavailable, not merely whether it was eventually obtained after trial.
At [29], Stein JA says Thompson’s statement “should have alerted” Wingrove to inspect the engine. The significance is case-specific: the expert already had information pointing towards the area he later examined. The Court did not accept that the engine inspection was an unforeseeable line of inquiry.
At [31], the Court says due diligence “would have required” inspection of both the wreck and the separated engine before trial. In plain English, the Court considered that the defence investigation was incomplete in a way that could have been corrected before the jury heard the case.
At [33], the Court describes the evidentiary comparison as “not … comparing oranges with oranges, but oranges with apples.” The translation is that the later component could not reliably be assumed to have been in the same condition as the engine and linkages inspected shortly after the crash. Unknown dismantling and possible intervening damage undermined the comparison.
At [35], Stein JA rejects the proposition that the fresh evidence created a significant possibility of acquittal. This was an alternative conclusion to the due-diligence ruling, not merely a statement that the evidence was inadmissible. The Court considered both its reliability and its likely effect when viewed alongside the trial evidence.
At [42], the Court says the sentence was “manifestly excessive” after considering all the objective circumstances. This conclusion followed recognition of substantial aggravating features, while also taking account of the absence of alcohol, drugs, competitive driving and ignored warnings, and the sentencing comparisons put before the Court.
At [47], the Court says the high-security classification did not amount to special circumstances justifying a non-parole period below three-quarters of the sentence. The judgment recognises the harsher prison conditions, but treats the uncertainty about reassessment of the classification as material to the conclusion.
For fresh-evidence analysis, Kaddour is relevant where proposed expert evidence was developed after trial but the expert had information before trial that pointed to the investigation later undertaken. The pertinent questions illustrated by the judgment include whether the expert had the relevant statement or report, whether the material suggested the later line of inquiry, whether the inspection could have been performed before trial, and why it was not done ([19], [27]–[31]).
The case is also relevant where the later evidence concerns a physical item that has been dismantled, altered, burned or otherwise exposed to possible intervening damage. The Court focused on whether the expert could establish the component’s condition at the relevant time and identify when the damage arose ([30], [33]). A later inspection may carry less persuasive force if the history and condition of the item cannot be established.
For the significance of proposed evidence, the judgment shows the importance of assessing it alongside the whole trial record, rather than in isolation. Here, the Court considered the proposed mechanical explanation together with the prosecution expert’s evidence and the evidence of sustained high speed before the collision ([28], [33]–[35]).
For sentence appeals, Kaddour may be relevant where the appeal concerns whether a sentence is excessive in light of the maximum penalty, comparable sentencing material and the particular aggravating and mitigating circumstances. The judgment’s assessment depended on the specific statistics and features presented to the Court, including both the prolonged excessive speed and the absence of alcohol and drugs ([37]–[42]). It should not be read as fixing a general sentence for dangerous driving causing grievous bodily harm.
The special-circumstances discussion concerns a claim based on restrictive prison classification. The judgment records the consequences of that classification but also the uncertainty about when reassessment would occur ([46]–[47]). It does not establish that any particular security classification will always, or never, constitute special circumstances.
The supplied judgment contains no later decisions and no account of how subsequent courts treated Kaddour. It is therefore not possible, on this material alone, to say whether later courts followed, distinguished, limited or questioned its reasoning.
The judgment itself cites earlier authorities. It invokes Ratten v The Queen for the reasonable-availability point, and refers to Mickelberg, Gallagher, R v AT and R v Hemsley in outlining the approach to fresh evidence and miscarriage of justice ([23], [25]–[26]). Those citations show the authorities Stein JA relied on in this decision, but they do not establish how later courts treated Kaddour.
For research or case preparation, the distinction matters: the decision’s stated reasoning can be reported from the judgment, but the status of that reasoning in later precedent cannot be inferred without later judgments or other supplied legal sources.
The judgment does not identify the provenance or full chain of custody of the separated fuel-injection assembly examined by Wingrove. It records that he did not know when or how the component was removed, why it was removed, or whether removal caused damage ([20]). Those uncertainties were important to the Court’s evaluation, but the judgment does not resolve what additional evidence about the component’s history might have changed that assessment.
The judgment also does not provide a detailed account of how the evidence was prepared for trial beyond the facts about the expert’s brief, the statement and the inspections. It records that Wingrove was not asked to inspect the engine and that he did not consider it relevant at the time ([19]). It does not set out the full instructions given to him, the defence’s resources, or any procedural constraints on access to the engine. The Court’s finding was made on the evidence before it, particularly the expert’s admissions and the contents of the prosecution statement.
On the mechanical issue, the judgment records competing expert views but does not make a technical finding about precisely how the accelerator system was damaged. It recounts Lee’s view that the throttle was closed and Wingrove’s later conclusion that damage could have prevented a reliable assessment ([15]–[18]). The appeal was resolved by the availability and evidentiary significance of the proposed fresh evidence, not by a definitive reconstruction of the vehicle’s mechanical condition.
On sentence, the judgment refers to statistics covering 22 convictions and to a collection of judgments, but the supplied text does not reproduce the full statistical table or the individual comparative cases ([38]–[39]). The decision therefore explains the factors that mattered to Stein JA but does not allow a complete independent comparison of every sentence in the dataset. Nor does it state how later sentencing cases treated the statistics or the substituted sentence.
Finally, although the Court concluded that the security classification did not justify a shorter non-parole period, it did not decide what result might follow if a classification were shown to persist for a particular period or if its consequences were supported by different evidence. The judgment states only that the Court did not know when Kaddour’s classification might be reassessed ([46]–[47]).
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CITATION : Regina v Kaddour [2002] NSWCCA 112 FILE NUMBER(S) : CCA 60565/00 HEARING DATE(S) : 4 March 2002 JUDGMENT DATE : 5 April 2002
PARTIES : Kalid Kaddour (Appellant) The Crown (Respondent) JUDGMENT OF : Stein JA at 1; Dowd J at 49; Buddin J at 50
LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0496 LOWER COURT JUDICIAL Mahoney DCJ OFFICER :
COUNSEL : S J Odgers (Appellant) L M B Lamprati (The Crown) SOLICITORS : Galloways (Appellant) S E O'Connor (The Crown) CATCHWORDS : CRIMINAL LAW - driving in a manner dangerous and causing grievous bodily harm - appeal against conviction - fresh evidence - whether evidence was available at the time of the trial - appeal against sentence - sentence excessive. - N/D LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Gallagher v The Queen (1986) 160 CLR 392 Mickelberg v The Queen (1989) 167 CLR 259 CASES CITED: R v AT [2000] NSWCCA 342 R v Hemsley (Unreported, Court of Criminal Appeal, 8 December 1995) Ratten v The Queen (1974) 131 CLR 510 DECISION : 1) Appeal against conviction dismissed 2) Leave to appeal against sentence granted and the appeal allowed 3) Set aside the sentence imposed by the sentencing judge and, in lieu thereof, the appellant is sentenced to 4 years imprisonment to date from 3 March 2000 and to expire on 2 March 2004. A non-parole period of 3 years is set from the commencement of the sentence on 3 March 2000 to expire on 2 March 2003.
IN THE COURT OF CRIMINAL APPEAL 60565/01
STEIN JA DOWD J BUDDIN J
Friday 5 April 2002 REGINA v Kalid KADDOUR Judgment 1 STEIN JA: This is a conviction appeal by Kalid Kaddour. On 3 July 2000 the appellant was found guilty of driving in a manner dangerous and causing grievous bodily harm. On 30 August 2000 he was sentenced to 6 years imprisonment with a non-parole period of 4 ½ years. He also seeks leave to appeal against sentence. 2 On 14 September 1998 the appellant drove a Lamborghini motor vehicle south in Barrenjoey Road, Mona Vale when it crossed a concrete medium strip into a north bound lane and collided with a Volvo being driven by Mrs Dexter, causing her injury. The accident occurred just south of the intersection with Phillip Road and close to the intersection with Grandview Parade. When it crossed the medium strip the Lamborghini was travelling at a high speed, somewhere between 100 and 105 kph. The speed limit was 60 kph. 3 Although there was evidence that the appellant's speed at the time of the accident was in excess of 105 kph, the jury were unable to agree on the alternative charge of causing grievous bodily harm by driving at a speed dangerous, to wit, more than105 kph. 4 There was evidence that prior to the accident, and for a distance of approximately 6 km, the appellant had been seen by numerous witnesses to be driving at very high speeds. A Lamborghini is a very powerful high performance car, perhaps more suited to racetracks than suburban roads. 5 The defence case at trial relied essentially on the possibility of a mechanical defect explaining the accident. One possible hypothesis raised was that at some point before the accident, the accelerator cable jammed. 6 Eight days after the accident a prosecution expert, Constable Thompson, examined the vehicle. Although the car had suffered significant fire damage, he found no mechanical problems other than those caused by the collision. He examined the accelerator throttle assembly and found that the pedal was jammed due to the collision and fire damage. He also said that the offside fuel bank throttle was free at rest and under its own spring tension. 7 Constable Thompson said in evidence that: … the throttle movement was normal, the spring made the throttle come back to rest when it was operated so that there was no sign of jamming or anything untoward on that side of the engine. So it effectively operated normally. 8 In cross-examination he said that the pedal was 'jammed sideways against [a] side kick panel'. 9 The defence called an expert witness, Mr Colin Wingrove, who said that the accelerator cable was jammed and this could have caused the appellant to lose control of the vehicle. Mr Wingrove had examined the vehicle wreck in June 2000, 21 months after Constable Thompson. Unlike Constable Thompson he did not examine the engine, as it was not with the wreck. 10 Mr Wingrove removed part of the accelerator cable from the car, unfortunately damaging it in the process. Although he surmised as to the possible ways the cable could have become stuck, he said that he did not know what had caused the jamming. 11 It seems that the jury did not accept that the accelerator cable was jammed prior to the accident so as to cause the appellant to lose control of the vehicle. 12 When Mr Wingrove gave evidence at the trial he had already read a statement of Constable Thompson. He was cross-examined as to some of the officer's evidence given at the trial, which was consistent with the statement. It appears that he was not present when Constable Thompson gave evidence. 13 Because of what Mr Wingrove had observed on his inspection of the wreck, sans the engine, and the contents of Constable Thompson's statement, he says that it did not occur to him at the time of the trial that he should examine the engine. Mr Wingrove says that he did not seek to examine the engine because it did not, at the time, appear to be relevant to his inquiries. 14 After the trial was over Mr Wingrove says that he became aware that the Crown had submitted to the jury that the observation of Constable Thompson that the offside throttle assembly was in the closed position meant that the cable was not jammed at the time of the accident. As a consequence of this awareness, Mr Wingrove examined the fuel injection assembly which he understood had been taken from the engine of the vehicle. He did this in July and September 2001. It must be noted that this was in excess of a year after the jury verdict and almost three years after the accident. 15 In an affidavit sworn 6 December 2001 and read to the Court of Criminal Appeal, Mr Wingrove said that he examined the accelerator linkages and saw certain damage, which he described. From his observations he concluded that Constable Thompson's evidence at the trial was erroneous. In short, he says that the nature of the collision damage occasioned to the entire accelerator linkage mechanism was sufficient to prevent Constable Thompson, during his examination of the engine after the accident, from confirming that the accelerator had returned to the closed position and therefore could not have jammed prior to the accident. 16 Also read upon the appeal was an affidavit of Senior Constable Lee sworn 28 February 2002. In his affidavit he disagreed with Mr Wingrove's conclusion mentioned immediately above. He says that it is clear that Constable Thompson examined the engine on 22 September 1998, including the associated linkages, cables etc, albeit they were in a burnt and damaged state caused by the vehicle catching alight after the collision. Mr Lee says that from Constable Thompson's statement it was plain that he carried out functionality tests on the accelerator linkages and found them to be intact, operating correctly and returning to rest. 17 After noting that Constable Thompson had examined the vehicle with the engine and accessories in situ, Mr Lee noted that Mr Wingrove had examined an inlet manifold assembly as a separate component. He says that the lack of an inlet manifold pivot at the end of the throttle shaft would have little significance to its operation. He says that the photographs taken by Mr Wingrove do not show any significant disturbance to the pivot at position 'C' marked on the photographs. 18 Mr Lee also examined the photographs tendered at the trial, including exhibit P5. He observed that only a small portion of the inner accelerator cable was protruding from the outer cable and the return spring was at rest. This was clearly indicative of a closed throttle, and if jammed, the cable was jammed at the closed throttle position. Further, the post impact fire, which melted the accelerator outer sheath, would have a gluing effect on the cable, meaning that the only way to determine throttle and cable position, was to measure the protruding inner cable. The photographs did not show any inner cable protrusion at the pedal end of the cable consistent with an open throttle.
19 On the hearing of the appeal the court permitted cross-examination of Mr Wingrove and Constable Lee. During Mr Wingrove's evidence he agreed that he could have examined the engine prior to the trial but he had not been asked to do so by the defence. He said that originally he had not been retained to look at the engine. With reference to Constable Thompson's statement (para 9) that the accelerator pedal was jammed against the kick panel, he said that he checked whether the pedal was jammed. He agreed that he did not check Constable Thompson's statement that he found the offside fuel bank throttle assembly to be free, at rest and under its own spring tension. He did not check this until well after the trial concluded. He said that he could have checked this before the trial 'if it was an integral part of what I was asked to investigate'. In cross-examination before us, Mr Wingrove also agreed that the cable could have been damaged by the fire. Indeed, he accepted that he was unable to say how the cable had been damaged. 20 Mr Wingrove also said that the fuel injection which he recently inspected, being part of the cylinder head, had been removed from the engine. He did not know when or how it was removed, or indeed why it was removed. He did not know whether the damage which he had seen had been caused by its removal from the engine. In further evidence about this, he said that the fire damage could be relevant in that it may indicate that the damage may have pre-dated the accident, although he added 'I have got no clear idea'. 21 On behalf of the appellant Mr Odgers SC submits that the particular evidence of Mr Wingrove is fresh evidence. It was not evidence which was actually available to the appellant at the trial or which could have been available to the appellant by the exercise of reasonable diligence in the preparation of his case. 22 On the other hand, Mr Lamprati, on behalf of the Director of Public Prosecutions, submits that the particular evidence would have been available at trial if due diligence had been exercised.
23 In Ratten v The Queen (1974) 131 CLR 510 at 517 Barwick CJ said: … It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. 24 On behalf of the appellant it is submitted that Mr Wingrove only appreciated the significance of Constable Thompson's evidence after the trial was over. He then suggested to the defence that it would be advisable for him to look at the engine. 25 Mr Odgers further submits that if the evidence had been available at the trial there was a significant possibility that the jury, acting reasonably, would have acquitted the appellant (Mickelberg v The Queen (1989) 167 CLR 259 at 301). See also Gallagher v The Queen (1986) 160 CLR 392. 26 In Mickelberg Toohey and Gaudron JJ said that in essence the fresh evidence must be such that, viewed with the evidence given at the trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused. The rationale for the rule is a miscarriage of justice and it is for the appellant to persuade the court that the absence of the evidence led to a miscarriage, see R v AT [2000] NSWCCA 342 at [50] and R v Hemsley (Unreported, Court of Criminal Appeal, 8 December 1995). 27 In my opinion the particular evidence relied on by the appellant from Mr Wingrove was evidence which would have been available at the trial if due diligence had been exercised. 28 Mr Wingrove was an expert. He was retained by the appellant to provide a report and give evidence at the trial. Amongst the material he had in his brief was the statement by Constable Thompson, in particular paragraph 9. Constable Thompson's evidence at the trial was in accordance with the statement. Constable Thompson testified that: I examined the accelerator throttle assembly and found the pedal to be jammed due to collision and fire damage. I found the offside fuel bank throttle assembly to be free at rest and under its own spring tension. … I found that the throttle movement was normal, the spring made the throttle come back to rest when it was operated so that there was no sign of jamming or anything untoward on that side of the engine. So it effectively operated normally. 29 It was plain that Constable Thompson had carried out an inspection of the engine as well as all of the other parts of the vehicle. The constable's statement and evidence should have alerted Mr Wingrove to inspect the engine. He did not do so and his reason for not so doing is unpersuasive. 30 By the time that Mr Wingrove did inspect the engine, or rather a part of it, another year had passed after the trial was over. Moreover, it is quite possible that the condition of the item in question had changed in the period which elapsed between the accident in September 1998, when Constable Thompson examined the engine, and July 2001 when Mr Wingrove saw it. The part had been dismantled from the engine under circumstances unknown to Mr Wingrove and he could not know if it had been damaged in that process. 31 The exercise of due diligence, it seems to me, would have required that the expert examine both the wreck and the separated engine prior to the trial. Without such, he was not in a position to meet Constable Thompson's opinion mentioned above. It is very difficult to accept his 'excuse' that it was not a 'live issue' at the trial. The explanation provided by Mr Wingrove remains unconvincing. 32 I would reject the fresh evidence since, with reasonable diligence, it could have been available. However, even if the fresh evidence was permitted, it is doubted that it could be concluded that with it there was a significant possibility that the jury would have acquitted the appellant.
33 I say this because the fresh evidence is of doubtful quality. That much is apparent from the cross-examination of Mr Wingrove and the evidence of Constable Lee on the appeal. There is doubt as to whether the injection assembly part examined by Mr Wingrove last year was, leaving aside fire damage, in the same condition as it was when the accident occurred and when it was examined by Constable Thompson shortly thereafter. After all, the court (and Mr Wingrove) are not aware of the circumstances in which it had been dismantled from the engine. Mr Wingrove was candid in his evidence when he said that he really could not say when the damage was caused to it. As the Crown Prosecutor observed, we are not talking about comparing oranges with oranges, but oranges with apples. 34 It may also be observed that the vehicle was seen travelling at a very high speed for a considerable distance prior to the accident. It is difficult to see how the jury might have concluded that the appellant lost control because of a jammed accelerator cable. 35 I do not think that it may be concluded that, if the fresh evidence in Mr Wingrove's affidavit had been before the jury, there was a significant possibility that the jury would have acquitted the appellant. 36 The appeal against conviction should be dismissed.
Appeal against Sentence 37 The appellant submits that the sentence of 6 years with a non-parole period of 4 ½ years was excessive. At the time of the offence the maximum penalty was 7 years. 38 According to the sentencing statistics provided to the court by the Crown, this was the highest sentence out of 22 convictions for the offence. Similarly the non-parole period was the highest. So, this was not a sentence at the top of the range, it set the range. 39 The court has been provided with a large number of judgments of the court for offences under this provision and also for dangerous driving occasioning death (maximum penalty 10 years). Many of them contain significantly aggravating features such as very high blood alcohol readings and ingestion of drugs. 40 Even allowing for double jeopardy aspects on appeals, it is impossible to comprehend how this case, serious as it is, was the worst or one of the two worst cases of its kind. 41 Although speed was an aggravating factor here, there was no involvement of alcohol or drugs. It is true that the applicant had a bad record for traffic offences over many years, including repeated speeding offences. Further, he was unlicensed at the time of the offence. 42 Although excessive speed aggravated the offence (and excessive speed seems to have occurred over a considerable distance of roadway) when all of the objective circumstances are taken into account, the sentence must be seen as a manifestly excessive one. Not only was there no involvement of drugs or alcohol, but this was not a case of competitive driving or of ignoring warnings. It was driving at a dangerous speed in the circumstances and it was the excessive speed which lead to the applicant losing control and crossing the medium strip to collide with the Volvo. 43 In my view, leave to appeal the sentence should be granted and the appeal against sentence upheld. Accordingly, it is necessary to re-sentence the appellant. 44 Taking account of the objective gravity of the offence and the subjective circumstances of the appellant, a sentence of 4 years imprisonment is appropriate. 45 There is a question as from what date the sentence should commence. His Honour commenced the sentence on 3 July 2000. However, it appears to be common ground that there were two periods prior to 3 July 2000 when the appellant was in custody on other charges with respect to which he was subsequently acquitted. The periods total 4 months. That custody was not related to the dangerous driving charge for which he was on bail. In the circumstances it would not be unreasonable to backdate the sentence to 3 March 2000. I do not understand the Crown to really oppose the backdating. 46 The next question is whether the non-parole period should be 3 years or whether there are special circumstances. The only circumstance relied on is that the appellant has been classified as an extreme high security inmate since mid 2001. This has significant consequences for access visits, employment and isolation. His access to prison facilities is severely restricted and there is no doubt that the experience is a harsher one than the normal situation. Nonetheless, the court does not know when the appellant might have his classification re-assessed. 47 I am not satisfied that his present classification constitutes a special circumstance under s 44 of the Crimes (Sentencing Procedure) Act 1999 such as to justify a non-parole period of less then three-quarters of the term of the sentence. I would therefore fix a non-parole period of 3 years so that the appellant will be eligible for release to parole from or after 2 March 2003. 48 I propose the following orders:
49 DOWD J: I have read the judgment of Stein JA in draft form. I agree with the proposed orders and with his Honour's reasons. 50 BUDDIN J: I agree with Stein JA. ***********
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Regina
Kaddour
The appeal against conviction was dismissed. Leave to appeal against sentence was granted and the appeal allowed. The original sentence was set aside and replaced by four years’ imprisonment commencing 3 March 2000 and expiring 2 March 2004, with a non-parole period of three years expiring 2 March 2003 ([48]).